Minneapolis says it will discipline cops who interfere with bystanders filming police actions

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A Minneapolis police officer telling a women to back up as she photographs him in front of the 4th District precinct during a protest on Nov. 18, 2015.

Minneapolis Police Department brass are preparing a new policy governing video recordings of police activities, but it’s not the one that has gotten a lot of media coverage — a long-discussed roll-out of body cameras for all officers, something that is set to begin in late May.

The other new policy will state that the public has a right to take photographs and video of officers while they are working. That right is not the department’s to grant, since it’s been determined in multiple court rulings that such activity is covered by the First Amendment to the U.S. Constitution.

But a second part of the proposed recording policy is significant. It will state that Minneapolis officers who interfere with a resident filming or photographing them — as long as that person isn’t inhibiting the cops from doing their job — will be subject to discipline.

Acknowledgement of the policy change came at the end of last week’s meeting of the council’s Public Safety, Civil Rights and Emergency Management Committee. After a lengthy discussion of the body camera policies and procedures, committee Chair Blong Yang asked about recordings covering a different angle of a scene, from bystanders filming the cops.

“What is the police department’s position on that with regards to allowing people to use their camera phones or any sort of recording device to record the police?” he asked Minneapolis Deputy Chief Medaria Arradondo.

Arradondo, who serves as Chief Janee Harteau’s chief of staff, said the department would be coming out shortly with such a recording policy. “It will spell out specifically the citizen’s right to do that, and that officers should not prohibit citizens from doing that; and if so, the consequences,” he said.

Broad support for policy

While most of the video footage of controversial deaths at the hands of police officers has been from government videos — often body or dash cameras — or from private surveillance cameras, some of the recordings have been taken by bystanders.

The death of Eric Garner by New York police officers in July, 2014, for example, was recorded by a bystander, as was the shooting by Pasco, Washington police officers of Antonio Zambrano-Montes in February of 2015. The shooting of Walter Scott by police in North Charleston, South Carolina, was also recorded by a member of the public.

There have also been instances when bystanders have been ordered to stop recording and arrested when they refused. In one case from 2012, Andrew J. Henderson was arrested while recording an ambulance crew and a Ramsey County deputy in Little Canada.

Prosecutors argued that Henderson was in close proximity to the crews and that they had asked him to stop. Henderson said he was many feet away, and maintained that the video would have proven his version had it not been deleted after the camera was confiscated. He was later acquitted of disorderly conduct and interfering with ambulance staff. (Henderson is also the person who discovered that the author of a Facebook post advising motorists how to escape charges if they hit Black Lives Matter marchers was St. Paul Sgt. Jeffrey Rothecker.)

“People have a First Amendment right as long as they are in a place where they are lawfully allowed to be,” said ACLU of Minnesota legal director Teresa Nelson. “If you don’t have a right to be there, don’t film.”

As far as laws against obstructing an officer, the courts have set a higher bar, Nelson said. “Your conduct must rise to the level of a physical obstruction,” she said. “Merely being annoying isn’t enough.”

Nelson termed the proposed Minneapolis police policy “very encouraging.” “Individuals don’t often know they have that right, and oftentimes police officers don’t know individuals have that right,” she said.

Minneapolis Council Member Blong Yang agrees that there is confusion on both sides. “We hear from residents, protesters, potential protesters that it is unfair that cops don’t let them record,” Yang said. “The public perceives that they aren’t allowed or that cops confiscate the footage.”

MinnPost photo by Ibrahim Hirsi

Lt. Bob Kroll

Yang said he hopes the department will have the recording policy in place at the same time that officers begin to be equipped with body cameras, expected now by the end of May.

The Minneapolis Police Officers Federation, the union for rank-and-file MPD cops, has been notified about the pending policy and is also supportive. “We tell our officers that you should assume you’re on camera all the time,” said Lt. Bob Kroll, federation president. “If you don’t, you’re not going to work in this field very long.”

Kroll said the federation does not know what level of discipline would be involved, but he made a connection between this policy and the pending body camera procedures. “The only issue I have is there are groups who don’t want us to tape people at civil disturbances or protests,” Kroll said, in reference to some expressed concerns that body cameras will be used for surveillance of the public. “If cops are expected to be on camera, then people involved in police activities should expect to be on camera.”

Destruction of footage also a concern

Beyond the right the record, the other fear among civil liberty activists is that the police will destroy footage recorded by bystanders, as happened in the Henderson case in Little Canada. That’s what led ACLU affiliates around the country to create “Mobile Justice” apps, which feature the ability to immediately send footage to the ACLU once a user stops recording.

ACLU of Minnesota Communications Director Jana Kooren said the state app has been downloaded more than 4,600 times. “While we have not gotten any actionable footage yet, we did receive footage from the 4th precinct showing how police were interacting with protesters,” Kooren wrote, in reference to the 18-day occupation of a north Minneapolis police station following the death of Jamar Clark in November 2015. “So we know that the app is empowering people to film the police in public.”

In a letter written by ACLU of Minnesota executive director Charles Samuelson to Minneapolis Chief Janee Harteau last fall, before the app was launched, Samuelson urged Harteau to “provide guidance” to her officers about the right to record, both by bystanders and by people involved in an encounter with police officers.

MinnPost photo by Corey Anderson

ACLU affiliates around the country have created “Mobile Justice” apps, which feature the ability to immediately send footage to the ACLU once a user stops recording.

“The policy should also prohibit officers from harassing, detaining, or arresting those who fail to stop recording when they are not physically obstructing the officers,” Samuelson wrote. Such citizen video, he argued, would serve a similar function as recordings from body cams.

“Having a clear policy will also help foster a strong relationship between officers and members of the community because the policy will likely foreclose many unnecessary negative interactions between police and individuals who are simply filming their activities,” Samuelson wrote.

A national trend?

Grant Stern, the executive editor of a website devoted to police videos, pointed to a model for such right-to-record policies: Colorado’s first-in-the-nation law, passed last May, that not only restates a citizen’s right to record police, but states that the public has a right to maintain “custody and control” of any recording devices and footage. The law also creates a cause of civil action against police who interfere with a citizen recording, and sets a $500 payment for any damage to devices and a fine of up to $15,000 for interference.

While news photographers don’t have special rights to record actions of police officers, they do have the same rights are other citizens — and exercise them more frequently. Still, Alicia Calzada, an attorney for the National Press Photographers Association (NPPA), said interfering in news gathering is “a persistent problem around the country.”

Calzada has seen other departments attempt to develop policies similar to what is being considered in Minneapolis. “There is definitely a need for better education on the right to record police and such policies are helpful,” she wrote via email. To that end, the NPPA cooperates in training sessions with police departments on the right to record.

Mickey Osterreicher, a Buffalo, NY attorney who is general counsel to the NPPA, said he hears a few times a week about photographers — both citizens and journalists — being harassed and sometimes arrested for recording police activities.

Osterreicher is uniquely trained to deal with the issues presented: He has a bachelor’s degree in photojournalism, a law degree and has been a reserve cop in Erie County, New York for 40 years.

“Mistrust by law enforcement of those with cameras and the misguided belief that photography and recording in public places may be restricted under color of law will continue unless proper policies and guidelines are implemented,” Osterreicher wrote in the April edition of Sheriff & Deputy magazine, a publication of the National Sheriffs’ Association. “But those policies will remain only pieces of paper without continuous reinforcement, proper training, and, where merited, disciplinary action against those officers who violate department guidelines.”

Comments (11)

The problem is how they define: “Interfere”. We’ve seen this before, they just don’t like being filmed or photographed and there are instances where someone across a street or at some other safe distance has been hassled or arrested (typically only be released later, the idea being to inconvenience rather than file charges). On the face of it this looks perfectly reasonable, in practice we’ll have to see. Back in the 80s cops didn’t even want people watching arrests and would frequently warn observers to: “move along”.

When I played football in high school, the trend was just starting for players to wear full cages as helmet face masks. I noticed that the play, especially on defense, became more reckless because psychologically, the players felt less vulnerable to injury and so they took greater risks … both with their own bodies and with the bodies they were hitting.

I refused this trend and continued to wear a single bar across my face as the sole protection of my good looks. Some would say that explains a lot but I digress. But my lack of protection actually resulted in fewer and less physical hits on my body, a phenomenon that has caused me to believe that football injuries might be reduced today if players played without a helmet at all, believe it or not.

It seems to me that when street cops wore just shirts and pants instead of riot helmets, face shields and body armor, and were armed with 38 caliber service revolvers instead of AR15s, Glock semiautomatics and riot shotguns, there was a lot less violence from both the cops and the citizenry who are now, it seems, to be reacting to the feeling of occupation instead of policing.

I think the cops should arm themselves with body cameras and service revolvers and wear the uniform of the day. And that’s it. Those who can’t deal with it should get a desk job somewhere else in the bureaucracy.

I guess we could also let them have a baton and a stun gun or taser, huh Dennis? Oh yeah, and maybe a standard law enforcement greeting to use:

“‘Ello. What’s all this, then?”

Or we could Americanize it a bit: “So. How about telling me what you think you’re doing here, [insert descriptor of suspect or witness from approved list with appropriate level of sarcasm, here, e.g., young man, young woman, sir, ma’am, citizen, denizen?, etc.]?”

On a related point, it might mean fewer “thrill seekers” or “cowboys” would go into law enforcement if they didn’t have all that cool stuff to deploy. Increased professionalism would likely mean a lesser tendency to resort to violence as a way to solve a routine issue.

so just exactly what are my rights to privacy should I NOT want to be video recorded in a conversation with police? Seems that my neighbor has the right to record it, seems to have the right to give to the media (be it Youtube through the traditional sources), and the media seems to have the right to publish it / use it.

All without my permission.

I get the desire to insure proper police actions through the use of body cameras. I’m ok with that. But count me as one who is more than a little concerned about what neighbors and passer bys might be doing with their cell phone video of me.

If you are on public property, you have no right to privacy. You can always ask the officers to move onto private property or into a patrol car if you don’t want to be filmed. I suspect that a lot of officers would be sympathetic to such a request as they probably don’t want to be filmed either.

Personally, I have nothing to hide, and appreciate the protection from unjustified escalations that bystanders filming me potentially provide.

but this concern isn’t just related to interactions with the police, or health providers. You are in danger of being recorded at anytime, anywhere. This ruling has nothing to do with that. It simply means you cannot be told to stop by the police (or be arrested for not doing anything illegal).

You want to make sure you and your actions are never recorded? good luck.